Can This Marriage Be Saved?

Left and right came together on criminal justice reform. Then Trump happened.

In the 1990s, when John Malcolm was a federal prosecutor in Atlanta, the nation’s prisons were being filled up with small-time drug dealers. The war on drugs was at its height, and the number of Americans in prison was rising dramatically. Now a legal scholar at the Heritage Foundation, the influential conservative think tank, Malcolm has watched with approval, in recent years, as lawmakers and law enforcement officials have begun to support criminal justice policies aimed less at punishing anyone caught with drugs and more at targeting violent offenders and drug kingpins.

Malcolm has been a member of an unlikely alliance that hopes to end America’s status as the world’s most prolific jailer: liberals who find the criminal justice system racist, inequitable, and inhumane are joining forces with conservatives—such as Malcolm—who find it wasteful, harmful to families, and heavy-handed. Last year, reformers on both sides agreed to support a proposed law that would relax mandatory minimum sentences, giving federal judges somewhat more discretion in sentencing and helping low-level offenders avoid prison time. It was a modest proposal, compared to the size of the problem, but the bill attracted a rare amount of bipartisan support in Washington.

Despite that support, however, the measure failed to pass Congress. Some Republicans wanted the law to include a provision on “mens rea” reform, which would expand the category of crimes in which a defendant’s criminal intent is a factor in determining guilt. Democrats, convinced that such a provision would make it harder for prosecutors to go after corporate crime, resisted. The bill stalled, then died—and so did some of the spirit of common cause. Last year, as the contentious presidential election neared its conclusion, the alliance started to come undone.

Liberal members of the coalition, such as Jesselyn McCurdy, a lobbyist for the American Civil Liberties Union, say that the reform bill failed because obstructionist Republicans didn’t want to give President Obama anything he could claim as a bipartisan achievement on the verge of the election. But, as Malcolm sees it, it was Democrats, confident that Hillary Clinton would be president and that the Republican grip on Congress would be loosened, who decided that they no longer needed to compromise. “People’s positions became hardened,” Malcolm said. Conservatives, he added, also bristled at the “anti-police” rhetoric of the Black Lives Matter movement and at the left’s emphasis on the racial disparities of the criminal justice system.

Since President Trump took office, the strain on the coalition has only intensified. Democrats have hunkered down as the party of resistance, while Republicans are calibrating their loyalty to the new president and to his Attorney General, Jeff Sessions, a law-and-order hard-liner with a particular animus toward drug crimes and illegal immigrants, who, last year, while still a senator, was a notable foe of the reform effort.

Some disheartened members of the reform club, such as Pat Nolan, the director of the American Conservative Union Foundation’s Center for Criminal Justice Reform, say that the movement should turn its attention to the states, where most criminal justice is dispensed. (Federal inmates account for only 9 percent of the 2.2 million people incarcerated in the United States.) Since 2010, dozens of states have enacted criminal justice reform measures, such as bail reform, job training for inmates, and raising the age at which defendants are treated as adults. “The whole idea of federalism isn’t working here, because the feds aren’t looking at what the states have done that’s successful,” Nolan said.

Groups from the right and left still meet regularly on criminal justice issues, including at a monthly work luncheon that Malcolm hosts, at the Heritage Foundation. But momentum has been hard to regain. “Hurt feelings are impacting meaningful discussion,” Malcolm said.

“For the right, the criticism of the left is ‘Your messaging stinks, and you don’t make it easy to pass stuff, because you make this difficult for conservatives to sign on to,’ ” Kevin Ring, the president of Families Against Mandatory Minimums, said. “And, for the left, the criticism of the right was ‘You didn't try that hard.’ ”

Many believe that the prospects for reform at the federal level now depend largely on two men: Sessions and Jared Kushner, the president’s adviser and son-in-law, who has added criminal justice to his thick portfolio. In March, Kushner discussed the failed criminal justice reform bill at a meeting with Sen. Mike Lee, of Utah, a Republican supporter of reform; Sen. Chuck Grassley, of Iowa, the chairman of the Senate Judiciary Committee; and Sen. Dick Durbin, of Illinois, the Democratic Whip. According to the New York Times, Kushner supports reform. His father, the real-estate developer Charles Kushner, spent two years in federal prison for tax evasion, witness tampering, and illegal campaign donations—and prisoner advocates hope that this personal experience might make Jared an ally.

So far, however, Kushner has been quiet while Sessions has moved quickly to set a tougher-on-crime course for the administration. One of his first acts as attorney general was to reverse Obama-era instructions to federal prosecutors that discouraged the pursuit of charges with mandatory minimums of prison time. In a speech in late May, in Memphis, Tenn., Sessions reiterated his belief that the ongoing opioid epidemic and rises in violent crime are linked. “Drug trafficking is an inherently violent business,” he said. “If you want to collect a drug debt, you can’t file a lawsuit in court. You collect it by the barrel of a gun.”

Ed Chung, the vice-president for criminal justice reform at the liberal Center for American Progress, who served as a Justice Department adviser during the Obama administration, said that Sessions’s order on charging defendants indicates that it will be more difficult to secure Republican help on significant federal reform. “It’s a difficult political atmosphere,” he said. “Especially with the way the administration has characterized what is needed as far as public safety and criminal justice.”

But Lee, who still believes that a reform bill can get through Congress, said he is not so sure Sessions will be an impediment. “Jeff Sessions is in a different role now—he’s no longer a lawmaker,” Lee said. “I’ve had conversations with people in the White House and elsewhere in the administration in which I’ve explained to them this could be a really good bipartisan win, a nice bipartisan moment, and I’ve been working with the administration to figure out what level of comfort they have with it and what we need to do in order to move forward.” (The Department of Justice said that Sessions was not available for comment, and the White House did not respond to requests to interview Kushner for this story.)

In the past few months, Sen. Cory Booker, of New Jersey, and other Democrats have introduced several incremental reform proposals, including the “Fair Chance Act,” which would prohibit federal employers and contractors from asking applicants about their criminal backgrounds until they have reached a final hiring stage. The bill made it through the Senate Homeland Security and Governmental Affairs Committee, in mid-May. (It also got that far last year before a few senators, Sessions among them, stopped it.)

But the only notable criminal justice measures showing signs of life in the House so far this year would only create more opportunities to put people in prison or to hand out longer sentences, such as a measure expanding the powers of federal probation officers to arrest anyone who interferes with their work.
Given this inhospitable climate, Ring, of Families Against Mandatory Minimums, said that perhaps the best course for reformers is to hope for “benign neglect” from the Trump administration and to focus on repairing the damage done to the alliance by the “emotional fallout” of 2016. Maybe, he said, “this is time for us to put our head down and start winning hearts and minds.”